Backgrounder on the Significance of Judicial Copying

On December 12, 2006, Discovery Institute released a report which found that "90.9% (or 5,458 words) of Judge Jones' 6,004-word section on intelligent design as science was taken virtually verbatim from the ACLU's proposed 'Findings of Fact and Conclusions of Law'." Since that time, we have received questions from various media sources and members of the public. This backgrounder on the report will help answer some common questions:

Why is this report important?
The section on whether ID is science is the most celebrated and expansive portion of the Kitzmiller opinion, which Judge Jones hoped would have an impact on future courts. As constitutional law scholar Stephen Gey said, "the critique of ID and science is the most important part of the Kitzmiller opinion . . ." Yet even the anti-ID legal scholar Jay Wexler agrees that this section was NOT necessary to the ruling and is highly controversial. The discovery that Judge Jones' section on whether ID is science was taken almost entirely verbatim or near-verbatim from an ACLU brief will likely give future courts good reasons to have significant hesitation before citing to this section of the ruling.

Moreover, this report is changing the verdict of the court of public opinion upon the issue. The report recounts the unyielding praise many Darwinists previously gave Judge Jones, but now even the arch-Darwinist biochemistry professor Larry Moran is admitting, "The legal significance of the decision doesn't change but my opinion of Judge Jones does. He is no longer the brilliant man who was able to grasp complex scientific concepts in the blink of an eye."

Other members of the public would agree with the report's central arguments that "the extent to which Judge Jones simply copied the language submitted to him by the ACLU is stunning" and that "[t]he revelation that Judge Jones in effect 'dragged and dropped' large sections of the ACLU's 'Findings of Fact' into his opinion, errors and all, calls into serious question whether Jones exercised the kind of independent analysis that would make his 'broad, stinging rebuke' of intelligent design appropriate."

Are you accusing Judge Jones of plagiarism or any other violation of judicial ethics?
No. As the report reads, "Proposed 'findings of fact' are prepared to assist judges in writing their opinions, and judges are certainly allowed to draw on them. Indeed, judges routinely invite lawyers to propose findings of fact in order to verify what the lawyers believe to be the key factual issues in the case. Thus, in legal circles Judge Jones' use of the ACLU's proposed 'Findings of Fact and Conclusions of Law' would not be considered 'plagiarism' nor a violation of judicial ethics."

Don't judges do this all the time?
Not to such a high extent of copying that Judge Jones employed. While there is no absolute prohibition against what Judge Jones did, the Associated Press reports that a legal scholar at the Louis Stein Center for Law and Ethics at Fordham Law School explained that it is "not typical for judges to adopt one side's proposed findings verbatim."

Do Courts Approve of this Practice?
The answer to this question is clearly "no": The Third Circuit, which governs all federal courts in Pennsylvania, has strong law discouraging judges from simply adopting 'verbatim or near verbatim' the findings of fact of parties in a case. One Third Circuit ruling in 2005, In re: Community Bank of Northern Virginia, held that it is "highly disapproved of" for judges to adopt the briefs of parties in a "verbatim or near verbatim" fashion.1 In 2004, the Third Circuit also had harsh words for a judge which unilaterally adopted the recommendations of one party:

Judicial opinions are the core work-product of judges. They are much more than findings of fact and conclusions of law; they constitute the logical and analytical explanations of why a judge arrived at a specific decision. They are tangible proof to the litigants that the judge actively wrestled with their claims and arguments and made a scholarly decision based on his or her own reason and logic. When a court adopts a party's proposed opinion as its own, the court vitiates the vital purposes served by judicial opinions. We, therefore, cannot condone the practice used by the District Court in this case.2

A 1964 U.S. Supreme Court case called a judge who adopted a party's findings of facts verbatim 'not the product of the workings of the district judge's mind' and noted the findings of fact had been 'mechanically adopted' by the district court."3 The late federal appellate Judge James Skelly Wright, famous for desegregating New Orleans public schools, was favorably quoted by the U.S. Supreme Court for instructing judges to avoid the blanket adoption of lawyers' arguments:

I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won't be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.4

Finally, in a 1985 U.S. Supreme Court ruling the Court similarly noted that "[w]e, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record."5 Thus, it is clear that while the "verbatim or near verbatim" adoption of a party's findings of facts practice is not prohibited, it is also highly disapproved of by many courts, including the U.S. Supreme Court and the Third Circuit Court of Appeals, which governs Judge Jones' own court. There is a good reason for this: it "vitiates the vital purposes served by judicial opinions."

Why are you issuing this report now, almost a year after the ruling?
Judge Jones issued his ruling in late December 2005. Discovery Institute subsequently published critiques of the Kitzmiller ruling in April 2006, with Traipsing Into Evolution, the first book-length critique of the Kitzmiller ruling. But we did not discover the extensive copying and pasting in Judge Jones' ruling until September 2006, when Michael Behe was investigating the source of Judge Jones' misquote of Behe in the Kitzmiller ruling. Work began on the present report at that time with aims to release it around the 1 year anniversary of the Kitzmiller ruling.

Did Judge Jones copy the entire opinion from the ACLU?
Parts of other sections of the ruling were taken verbatim from the ACLU's proposed Findings of Fact and Conclusions of Law, but we have not conducted a quantitative analysis of the level of copying in those sections. The report covers only the section of the Kitzmiller opinion which purported to address the question of whether ID is science.

What role did this "ID as science" section play in the entire judicial opinion?
Under current constitutional law, Judge Jones could have struck down Dover's ID-policy without addressing whether ID is science. But Judge Jones claimed it was "incumbent upon the Court to further address . . . whether ID is science." Judge Jones even sought to answer the question for all other courts, writing that "no other tribunal in the United States is in a better position than" his own to address whether ID is science, and declared his "hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question"6 of whether ID is science. Clearly, Judge Jones sought to settle the question of whether ID is science for all future courts. Yet, as the study aptly concludes, "The new disclosure that Judge Jones' analysis of the scientific status of ID merely copied language written for him by ACLU attorneys underscores just how inappropriate this part of Kitzmiller was--and why Judge Jones' analysis should not be regarded as the final word about intelligent design."